225 U.S.

631
32 S.Ct. 699
56 L.Ed. 1233

D. L. HENDERSON, Trustee in Bankruptcy of Joseph Burns,

Bankrupt, Petitioner,
v.
SAMUEL MAYER.
No. 219.
Argued April 19, 1912.
Decided June 7, 1912.

Samuel Mayer owned a plantation in Dooley county, Georgia, which he

rented to Joseph Burns for one year. The rent not having been paid at
maturity, Mayer, on November 13, 1908, made an affidavit in conformity
with the statute, and a justice of the peace thereupon issued a distress
warrant, which, on the same day, was levied upon the cotton, corn, and
other products of the place. The crops found on the premises being,
apparently, insufficient to pay what was due, the sheriff, at the same time,
levied upon other property by virtue of 2795 of the Code of Georgia,
which declares that 'landlords shall have a special lien for rent on crops
made on land rented from them, superior to all other liens except liens for
taxes, . . . and shall also have a general lien on the property of the debtor
liable to levy and sale, and such general lien shall date from the time of
the levy of a distress warrant to enforce the same.'
Three days after the levy a petition in bankruptcy was filed against Burns,
the tenant, who was subsequently adjudged a bankrupt. The trustee, when
elected, obtained possession of all the property seized by the sheriff, and
subsequently sold it in the due administration of the estate. The proceeds
of the cotton and corn were paid over to Mayer, it being conceded that the
landlord's special lien on the crops had not been affected by the
bankruptcy proceedings.
Mayer also claimed that, by virtue of his general lien, he was entitled to
have the balance of the rent paid out of the proceeds arising from the sale
of the other property levied on, and filed his intervention to secure such an
order. The trustee's objection was sustained by the referee on the ground

that the landlord's general lien was discharged because it had been
'obtained by legal proceedings' or levy made three days before the filing
of the petition in bankruptcy. His ruling was reversed by the district court
(175 Fed. 633). That judgment was affirmed by the circuit court of appeals
without opinion. The case was then brought here by writ of certiorari,
granted at the instance of the trustee, who claims that under the Georgia
Code the landlord had no lien on the property prior to the levy of the
distress warrant, and that whatever right had been acquired by that seizure
was discharged by 67f, which declares that 'all levies, judgments,
attachments, or other liens obtained through legal proceedings against a
person who is insolvent at any time within four months prior to the filing
of a petition in bankruptcy against him shall be deemed null and void in
case he is adjudged a bankrupt.' [30 Stat. at L. 565, chap. 541, U. S.
Comp. Stat. 1901, p. 3450.]
Messrs. Orville A. Park, George S. Jones, Merrel P. Callaway, Isaac
Hardeman, and E. P. Johnston for petitioner.
Mr. Arthur H. Codington for respondent.
[Argument of Counsel from pages 634-636 intentionally omitted]
Mr. Justice Lamar, after making the foregoing statement, delivered the
opinion of the court:

The provisions of the bankruptcy act, preventing an insolvent from giving or

the creditor from securing preferences for preexisting debts, apply not only to
mortgages and transfers voluntarily made by the debtor, but also to those
preferences which are obtained through legal proceedings, whether the lien
dates from the entry of the judgment, from the attachment before judgment, or,
as in some states, from the levy of execution after judgment. But the statute was
not intended to lessen rights which already existed, nor to defeat those inchoate
liens given by statute, of which all creditors were bound to take notice, and
subject to which they are presumed to have contracted when they dealt with the
insolvent.

Liens in favor of laborers, mechanics, and contractors are of this character; and
although they may be perfected by record or foreclosure within four months of
the bankruptcy, they are not created by judgments, nor are they treated as
having been 'obtained through legal proceedings,' even when it is necessary to
enforce them by some form of legal proceeding. The statutes of the various
states differ as to the time when such liens attach, and also as to the property

they cover. They may bind only what the plaintiff has improved or constructed;
or they may extend to all the chattels of the debtor, or 'all the property involved
in the business.' Re Bennett, 82 C. C. A.531, 153 Fed. 673.
3

In some cases the lien dates from commencement of the work, or from the
completion of the contract. In others, prior to levy they are referred to as being
dormant or inchoate liens, or as 'a right to a lien.' Re Bennett, 82 C. C. A. 531,
153 Fed. 677; Re Laird, 48 C. C. A. 538, 109 Fed. 554. But the courts, dealing
specially with bankruptcy matters, have almost uniformly held that these
statutory preferences are not obtained through legal proceedings, and therefore
are not defeated by 67f, even where the registration, foreclosure, or levy
necessary to their completion or enforcement was within four months of the
filing of the petition in bankruptcy.

Similar rulings have been made where the landlord has only a common-law
right of distress. Re West Side Paper Co. 89 C. C. A. 110, 162 Fed. 110, 15
Ann. Cas. 384. This is often referred to as a lien, but it is 'only in the nature of
security.' 3 Bl. Com. 18. The pledge, or quasi pledge, which the landlord is said
to have, is, at most, only a power to seize chattels found on the rented premises.
These he could take into possession and hold until the rent was paid. Doe ex
dem. Gladney v. Deavors, 11 Ga. 84. But before the distraint the landlord at
common law has 'no lien on any particular portion of the goods, and is only an
ordinary creditor, except that he has the right of distress by reason of which he
may place himself in a better position.' Sutton v. Rees, 9 Jur. N. S. 456, 1 New
Reports, 464, 8 L. T. N. S. 343, 11 Week. Rep. 413. A right fully as great is
created by the Georgia statute here in question. For while giving the owners of
agricultural lands a special lien on the crops, there was no intention to deprive
the proprietor of urban and other real estate of the lien for rent which there, as
in other states, is treated as an incident growing out of the relation of landlord
and tenant.

The Code ( 2787) expressly 'establishes liens in favor of landlords.' It ( 3124)

gives them 'power to distrain for rent as soon as the same is due.' It declares (
2795) that landlords 'shall have a general lien on the property of the tenant
liable to levy and sale . . . which dates from the levy of the distress warrant to
enforce the same.' It is true that prior to levy it covers no specific property, and
attaches only to what is seized under the distress warrant issued to enforce the
lien given by statute. But in this respect it is the full equivalent of a commonlaw distressthe lien of which is held not to be discharged by 67f. Re West
Side Paper Co. supra; Austin v. O'Reilly, 2 Woods, 670, Fed. Cas. No. 665.

The fact that the warrant could be levied upon property which had never been

on the rented premises does not change the nature of the landlord's right, though
it may increase the extent of his security. The statutory restrictions as to date,
rank, and priority may be important in a controversy with other lienholders, but
was wholly immaterial in this contest between the landlord and trustee, where
the latter was only representing general creditors. As against them the landlord
had, from the beginning of the tenancy, the right to a statutory lien, which had
completely ripened and attached before the filing of the petition in bankruptcy.
The priority arising from the levy of the distress warrant was not secured
because Mayer had been first in a race of diligence, but was given by law
because of the nature of the claim and the relation between himself as landlord
and Burns as tenant. In issuing the distress warrant the justice acted
ministerially. Savage v. Oliver, 110 Ga. 638, 36 S. E. 54. The sheriff was not
required to return it to any court, and no judicial hearing or action was
necessary to authorize him to sell for the purpose of realizing funds with which
to pay the rent. Such a lien was not created by a judgment nor 'obtained through
legal proceedings.'
7

Decisions to the same effect were made under the bankruptcy act of 1867 (14
Stat. at L. 522, 14, chap. 176), which dissolved attachments or mesne process
within four months prior to the filing of the petition. In Austin v. O'Reilly,
supra, decided in 1875, it appeared that in Mississippi the landlord had no lien,
but, as in Georgia, was authorized to seize (but by attachment) the tenant's
goods wherever found. Justice Bradley, presiding at circuit, said that the
landlord's right to a distress at common law was not a strict lien, but 'being
commonly called a lien, and being a peculiar right in the nature of a lien, . . . the
Supreme Court of the United States, and most of the district and circuit courts,
have regarded it as fairly to be classed as a lien, within the true intent and
meaning of the bankrupt act,' and that the statutory attachment being in the
nature of a common-law distress was not nullified or discharged by the
bankruptcy proceedings.

There is nothing in the act of 1898 opposed to this conclusion. On the contrary,
its general provisions indicate a purpose to continue the same policy, and an
intent, as against general creditors, to preserve rights like those given by the
Georgia statute to landlords, even though the lien was enforced and attached by
levy of a distress warrant within four months of the filing of the petition in
bankruptcy.

Affirmed.